September 11, 2014

HARRISBURG - The ACLU of Pennsylvania, on behalf of four newspapers, including the Guardian, the Philadelphia Inquirer, the Pittsburgh Post-Gazette, and the Philadelphia City Paper, has asked a federal judge to unseal court records that contain information about the source of the drugs used for lethal injections in Pennsylvania. The first execution in 15 years in the commonwealth could occur as soon as September 22. The newspapers seeking this information argue that keeping that information under seal violates their First Amendment rights.

The source of drugs used for lethal injections has been the subject of controversy recently. The lethal injection protocols used by several states, including Pennsylvania, call for the administration of three drugs, beginning with a drug, such as pentobarbital, intended to anesthetize the prisoner, followed by pancuronium bromide and potassium chloride. Because the FDA-approved version of pentobarbital is not sold to departments of corrections for use in executions, states can only obtain the drug by contracting with a compounding pharmacy to make the drug on special order. The use of compounded drugs in executions raises concerns, in part because compounding pharmacies are less regulated than pharmaceutical manufacturers. Questions have been raised about the quality and reliability of the compounded execution drugs and whether the pharmacies have legally obtained the active ingredients used.

“In light of the recent string of horrifically botched executions, the public is entitled to know how the state obtained the drugs they plan to use to carry out executions here in Pennsylvania,” said Reggie Shuford, executive director of the ACLU of Pennsylvania.

Several executions in other states using experimental lethal injection cocktails have had serious complications, including those of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona. According to media witnesses, Mr. McGuire gasped for air for over 20 minutes; Mr. Lockett writhed, gasped and tried to speak for over 40 minutes; and Mr. Wood took nearly two hours to die, gasping an estimated 650 times, according to eyewitnesses. Additionally several executions using compounded pentobarbital have been problematic, including that of Michael Lee Wilson in Oklahoma, whose last words were “I feel my whole body burning.”

“The information sought by our clients is central to today’s debate about capital punishment. If the drugs are not made properly, they will not work properly, and the public should be very concerned about that possibility given the gruesome executions we have heard about in other states,” said Mary Catherine Roper, senior staff attorney at the ACLU of Pennsylvania.

Pennsylvania has a history of open public access to information about its use of capital punishment. Before adopting lethal injection in 1991, the legislature convened public hearings, undertook fact-finding and held public debate. Today’s lawsuit seeks to continue the tradition of transparency in the commonwealth’s use of the death penalty.

The execution of Hubert Michael is currently stayed by the U.S. Court of Appeals for the Third Circuit on an issue not related to lethal injection, but it is unclear at this time whether the execution will move forward on September 22. The state has so far refused to release any information about the sources of the drugs it plans to use in the execution.

Today’s request is filed in the ongoing class-action lawsuit,Chester v. Wetzel, brought on behalf of Pennsylvania death row prisoners, which states that the commonwealth is violating the federal Constitution’s ban on cruel and unusual punishment by utilizing a lethal injection procedure that creates significant risks of extreme pain and suffering. The death row inmates are claiming that the pentobarbital the state will use for their executions is not sufficiently tested and is not manufactured according to industry standards. Pentobarbital is administered first so as to completely anesthetize the inmate, who otherwise would experience extreme pain and suffering from the subsequent drugs. The ACLU’s motion asks the court to unseal documents that have been filed with the court under seal that contain information about the entities involved in supplying execution drugs to the Department of Corrections.

The newspapers are represented by Roper at the ACLU of Pennsylvania, and Judith Brown Chomsky of Elkins Park.

More information about the case, including a copy of today’s filing, is available at: